I, R (on the application of) v City of Westminster Magistrates' Court & Anor

Detention under section 41 of the Terrorism Act 2000 is compatible with Article 5 where continued detention is subject to prompt and regular judicial control. Article 5 does not require the judicial authority reviewing further detention to possess a power to grant conditional bail before charge.

The court must decide whether detention remains necessary for the purposes specified in Schedule 8. If it is not necessary, detention must not continue. Depending on the circumstances, the individual may be charged and dealt with under the ordinary bail regime, or arrested for a specific suspected offence, engaging the custody officer’s powers under the Bail Act 1976.

The claimant was detained under section 41 of the Terrorism Act 2000. A District Judge had authorised a further period of detention under Schedule 8. The claimant sought judicial review, arguing that the statutory scheme was incompatible with Article 5 because neither the custody officer nor the judicial authority had power to release him on conditional bail before charge.

By the hearing, the claimant was due to be charged, so the urgent aspect of the application had become academic. The court nevertheless considered whether the claim was arguable and whether the statutory safeguards complied with Article 5.

1. The urgent issue had become academic because the claimant was due to be charged before the authorised detention expired. The court nevertheless considered the substance of the proposed challenge and refused permission for judicial review, holding the claim unarguable.
2. Section 41 permits arrest and detention on reasonable suspicion that a person is a terrorist, without requiring reasonable suspicion of a particular offence at the initial stage. Schedule 8 requires release after 48 hours unless further detention is authorised by a judicial authority.
3. Under paragraph 32 of Schedule 8, further detention may be authorised only where there are reasonable grounds for believing that detention is necessary to obtain, preserve or await the examination or analysis of relevant evidence, and the investigation is being conducted diligently and expeditiously.
4. The detention falls within Article 5(1)(c) because its purpose is to bring the detainee before a competent legal authority on reasonable suspicion of having committed an offence. Article 5 requires prompt judicial control of detention, but does not require that the reviewing judge have an automatic power to grant conditional bail before charge.
5. McKay v United Kingdom (2006) ECHR 820 did not establish such a requirement. It recognised the need for judicial consideration of continued detention and release with due expedition, but the present statutory scheme provided the necessary safeguards through judicial control over whether detention remained justified.
6. If detention is no longer necessary, the judicial authority must refuse its continuation. The individual may then be charged and dealt with under the ordinary bail provisions, or arrested for a specific suspected offence, in which case section 3A of the Bail Act 1976 may permit conditions to be imposed.